¶1It has been a very common practice for the prevailing party, after the trial of an issue of law, to enter an order sustaining •or overruling the demurrer, and giving the defeated party leave to serve a new pleading. This practice is clearly wrong, for section 1010 of the -Code expressly declares that, upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed in the clerk’s office, within 20 days after the final adjournment of the term where the issue was tried. And in Palmyra v. Wynkoop, (Sup.) 6 N. Y. Supp. 62, it was held that there could be no judgment upon a demurrer, either final or interlocutory, without such a decision in writing of the issue or issues; and that no order for judgment was necessary, nor could such order take the place of such decision,-in writing, by the court. It follows that the order entered in this case was unwarranted and irregular, and should be -vacated.
¶2Counsel for the defendants have submitted a proposed form of decision, which directs both an interlocutory and final judgment. Section 1021 provides that the decision of the court must direct the final or interlocutory judgment, but does not provide that it must direct both judgments; and the attorney for the plaintiff may submit a decision in such •form as he thinks should be entered, and also an order vacating the order heretofore entered. The papers may be resubmitted to me at chambers, on July 27th.